HIGH COURT RULING MAKES IT EASIER FOR DRUG-COURT GRADS TO WIPE SLATE CLEAN

All those who successfully complete drug court in New Jersey are eligible for an immediate expungement of prior minor criminal offenses, the state Supreme Court has ruled — clarifying a two-year old law that offers a clean slate to non-violent former drug addicts looking to rebuild their lives.

The2016 lawgives those who complete the drug-court program a presumptive automatic expungement of their entire criminal record as long as that record does not include major violent crimes like murder or kidnapping, or serious drug offenses including possession of larger quantities of marijuana or any amount of heroin or cocaine.

But shortly after the law took effect, prosecutors contested three drug-court graduates’ requests for expungement, saying that approving the erasure of their criminal histories was not in the “public interest.” One of the individuals had as many as 13 convictions, another had eight convictions for third-degree offenses that included burglary. Each had drug-related offenses.

While the trial judge said there was no requirement for these individuals to prove that they have exhibited good conduct and character, the appellate division disagreed and ruled that anyone convicted of a third- or fourth-degree offense, excluding marijuana possession, would have to prove that an expungement was “in the public interest.”

In a unanimousopinion released Tuesday, the Supreme Court reversed and held that all those convicted of third- and fourth-degree drug offenses “are entitled to a presumption that expungement of those offenses is consistent with the public interest.”

No need to hunt down old records

That does not mean an expungement is automatically granted — prosecutors can still present evidence in an effort to prevent an erasure of an individual’s record. But drug-court graduates will not have to meet the tougher “public interest” standard, which obligated them to obtain sometimes old and possibly costly transcripts and sentencing documents that others seeking expungement under other rules must procure. Typically, a person can only seek expungement for one low-level offense, or more recently a group of crimes committed at the same time, following a period of years without re-offending.

“Because older transcripts and reports can be difficult to locate,” Chief Justice Stuart Rabner wrote, the court’s ruling “will have a practical effect on a graduate’s ability to participate in life’s daily activities without the stigma and consequences of a criminal record.” Rabner noted that while the decision turned on fine points of law, “Those narrow, seemingly technical questions can have far-reaching effects for drug court graduates who seek to reintegrate into society.”

Lawyers who represent drug offenders called the decision significant and a win for those who struggled to complete the intensive drug-court process, which includes required treatment and self-help meetings, random drug testing and weekly court appearances and can take between two and five years to complete.

“This is a major victory for our drug court clients,” said Stephen Hunter, state assistant deputy public defender, who argued the case for the three graduates. “This should be an efficient process … It’s a recognition the Legislature was trying to do something different here.”

Hunter noted, and the decision acknowledges, that those who complete drug court should not have to prove their good conduct and character based on older offenses because the judge and others who are part of the drug-court process have come to know the individual well. Rabner called drug court “a rigorous program of supervision.”

Success of drug-court program cited in ruling

In an amicus brief in the case, the American Civil Liberties Union of New Jersey had argued that making expungements more difficult would remove one of the major benefits of the drug-court program.

“If the Appellate Division opinion is allowed to stand, it runs the risk of discouraging program entry and completion, by removing the incentive and reward of expungement of entire records,” the brief stated.

The Supreme Court agreed, citing statistics showing the positive impact of drug courts: “More than 5,400 individuals have successfully completed drug court since 2002, when the program went operational statewide … Nine out of ten participants are employed when they graduate ... Two out of three have a driver’s license at graduation … More than half have medical benefits … And participants must have clean drug tests for one continuous year to be able to graduate.”

According to the stateAdministrative Office of the Courts, 750 graduates of drug court had had their criminal records expunged through August 6, 2018. The ability of a person to expunge criminal history can make a big difference in successfully moving on with life, including getting a job and a home, advocates say.

“This decision upholds the intent of the Legislature,” said Roseanne Scotti, New Jersey state director of the Drug Policy Alliance. “As the Court rightly states, the goal of the legislation was to relieve Drug Court graduates of the life-long burden and stigma associated with a criminal conviction. Thus, these individuals can rebuild their lives, find employment and successfully reintegrate into their communities.”

Avoiding ‘collateral consequences’

Tess Borden, the lead ACLU-NJ lawyer on the case, praised the decision as a way to help those whose criminal record really stemmed from drug addiction to get their lives back on track once they have licked their dependence.

“The opinion is an important one because the court recognizes the harms of collateral consequences and their far-reaching effects on people who are trying to live their lives in a productive manner,” she said.

“All of our clients face barriers because of their criminal records,” said Hunter of the Office of the Public Defender. By completing drug court “They’ve really done great things. This will help that process to let them fully reintegrate into society.”

For the three individuals, identified only by initials, the ruling means they can now go back to a judge for final determination on their expungement request.